Section 1: Joint Agreement on Guidance for Equality in Employment

1.Introduction

2.Scope

3.Our Commitment

4.Public Sector Equality Duty

5.Protected characteristics

6.Types of discrimination

7.Equality Monitoring and Analysis

8.Ensuring equality

9.Dignity at work

10.Recruitment and Selection

11.Training and Career Development

12.Termination

13.Positive Action

14.Responsibilities

15.Review and Consultation

16.Legal duties

17.Implementation

18.Definition of a joint agreement on guidance

Section 2: Appendices

Appendix 1: Specific Considerations for Disability Equality in Employment

Appendix 2: Specific Considerations for Trans Equality in Employment

Appendix 3: Examples of Potential Discrimination

Appendix 4 - Glossary of Terms

Section 1: Joint Agreement on Guidance for Equality in Employment

1.Introduction

1.1This joint agreement on guidance covers equality in employment and is based on the principle that people with protected characteristics should not be discriminated against in employment, when seeking employment, or when engaged in activities related to work.This document has been developed jointly to equip Colleges to meet their obligations under the Equality Act 2010, and other relevant legislation, in relation to employment; and to demonstrate their commitment to equality and diversity.The joint agreement on guidance reflects guidance from the Equality and Human Rights Commission (EHRC) on equality in employment and on the public sector equality duty.

1.2This joint agreement on guidance is based on the knowledge that discrimination exists within today’s society and that discrimination prevents people from realising their full potential in the workplace. No one should suffer discrimination at work. This joint agreement aims to progress the equality agenda within Colleges with a view to delivering outstanding services. It is recognised that this requires a proactive approach to mainstream equality into all policies, procedures, decisions and activities.

1.3This joint agreement on guidance is intended as guidance to Colleges on equality in employment.It is not a model policy.It is intended that the College develop their own equality policies, relevant to their local circumstances, whilst referring to this joint agreement, which aims to support the College in achieving this end.

2.Scope

2.1This joint agreement on guidance applies in relation to all employees in the College, whether they are employed on full-time or part-time contracts or on a permanent or fixed-term basis.Commitments to equality of opportunity also extend to potential future employees who apply to work in the College.

2.2Although this guidance refers to employees throughout, the College should be aware of their wider responsibilities to provide a dignified and positive working environment, free from discrimination, for all who work on the College premises and in all activities undertaken in the course of their employment.

2.3It should be noted that individuals are personally accountable for their behaviour and may be held liable for acts of discrimination. All individuals who work on College premises, including agency, contract workers and volunteers, are therefore expected to support the College’s commitment to equality.

2.4Although this joint agreement applies to staff, students should also be reminded of their responsibilities in relation to equality.

3.Our Commitment

3.1The College encourages, celebrates and values the diversity of the workforce and is committed to the equality of treatment for all employees.Engaging employees from a variety of backgrounds at all levels of responsibility and across all areas of work will provide positive role models for students and staff who identify with a protected characteristic.

3.2The College will seek not only to eliminate discrimination, but also to provide a positive working environment free from discrimination, harassment and victimisation, where all employees are treated with respect and dignity.

3.3The aim is to create a positive and inclusive ethos where issues of discrimination and stereotyping can be discussed openly; with a shared commitment to challenging and preventing discrimination (whether overt or covert), to respecting diversity and difference, and to encourage good relations between different groups.

3.4Discriminatory behaviour against employees will not be tolerated, whether that behaviour comes from other employees, students or third parties, such as employers, contractors or members of the public.

3.5In ensuring that the College’s commitments are fully effective, and that all employees are committed to them, Colleges should work locally in partnership with recognised trade unions, staff equality groups and with employees, including those who identify with a protected characteristic, in the development and implementation of equality policies and objectives.

4.Public Sector Equality Duty

4.1The Equality Act 2010 introduced a new public sector equality duty (“the duty”), which consists of the general equality duty with its three main aims, and specific duties designed to help Colleges meet the general duty by improving the focus and transparency of their activities.

4.2The new equality duty at section 149 of the Equality Act replaces the previous duties, which related specifically to race, disability and gender equality.The new equality duty requires all public bodies, including Colleges, to consider all of the protected characteristics in shaping policy, in delivering services and in relation to employment. The original duties were enacted as a response to the Stephen Lawrence Inquiry[1] which concluded that institutional racism affected the Metropolitan Police and their failure to appropriately investigate a racist murder. It is incumbent on every institution to examine their policies and practices to guard against disadvantaging any section of the community and avoiding institutional discrimination.

4.3Complying with the specific duties is a necessary part of complying with the general equality duty, but it is not sufficient in itself. Complying with the general equality duty requires having due regard to the need to achieve the aims of the duty across all of the College’s functions.

The general duty

4.4In accordance with the general equality duty the College will, in carrying out its functions, have due regard to the need to:

  • eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by theact;
  • advance equality of opportunity between people who share a protected characteristic and those who do not; and
  • foster good relations between people who share a protected characteristic and those who do not.

4.5Eliminating discrimination and advancing equality of opportunity involves:

  • removing or minimising disadvantages suffered by people due to their protected characteristics;
  • taking steps to meet the needs of people from protected groups where these are different from the needs of other people;
  • encouraging people from protected groups to participate in activities where their participation is disproportionately low;
  • taking steps to eliminate harassment related to each protected characteristic; and
  • promoting positive attitudes towards each protected characteristic, for example attitudes towards women, disabled people, people of certain age groups or religious beliefs, transsexual people, lesbian, gay or bisexual people, or ethnic minority groups.
  • ‘Due regard’ involves thinking consciously about how existing and proposed policies and practices impact on equality. This includes how employees are treated, the design and delivery of services and how financial decisions are made.

4.7Fostering good relations involves tackling prejudice and promoting understanding between people from different groups.

4.8Complying with the duty may involve treating some people more favourably than others, although it is important to ensure that in doing so there is no breach of the non-discrimination provisions of the act.

The specific duties

4.9In accordance with the specific equality duties, the College will, in summary, publish equality information and prepare and work towards equality objectives.Full details are explained in Sections 4.10 - 4.12 below.

4.10The College will publish information to demonstrate how it is meeting the general equality duty.The first publication was required by 31 January 2012, and continues at least annually after that, from the first date of publication.

4.11The information published will include, in particular, information relating to employees who share a relevant protected characteristic; and will seek to demonstrate the extent to which the College is furthering the aims of the general equality duty for its employees and for others with an interest in the way it performs its functions.

4.12The College will prepare and publish specific and measurable objectives that it reasonably thinks it should achieve to meet one or more aims of the general equality duty (outlined in Section 4.4 above).These objectives must be published by 6 April 2012 and at least every four years after that, in a manner that is reasonably accessible to the public.

5.Protected characteristics

5.1This joint agreement on guidance covers all the protected characteristics contained in the Equality Act, namely:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Each protected characteristic is defined below.

5.2Age: A reference in the act to a person who has the protected characteristic of age is a reference to a person of a particular age group or a person who shares a particular age group. An ‘age group’ is a group of persons defined by reference to age, whether to a particular age or a range of ages. The College must not discriminate against any employee because of his/her age or to the age group they belong to.

5.3Disability:A person is defined as disabled under the act if he/she has a physical or mental impairment which has a long-term and substantial adverse effect on his/her ability to carry out normal day-to-day activities. Physical or mental impairment includes sensory impairments.Non-disabled employees who are (wrongly) perceived to be disabled will also be protected from direct disability discrimination and harassment (see Section 6).

5.4Gender reassignment: References to transsexual people under the act covers employees who are proposing to undergo, are undergoing, or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex, i.e. gender reassignment. There is no requirement that the process of gender reassignment includes medical supervision. It is recognised that there may be differences between physical sex and gender identity. This joint agreement on guidance relates not only to the protected characteristic of gender reassignment, but also to the wider trans community, which includes people who identify with any of the identities described in the Glossary of Terms at Appendix 4.Refer to Appendix 2 for specific considerations for trans equality in employment.

5.5Marriage and civil partnership:The College must not discriminate against any employees because they are married or are in a civil partnership. Marriage will cover any formal union of a man and woman which is legally recognised in the UK as a marriage. A civil partnership refers to a registered civil partnership of a same sex couple under the Civil Partnership Act 2004, including those registered outside the UK. Only people who are married or in a civil partnership are protected against discrimination on this ground.

5.6Pregnancy and maternity: The College must not treat a woman unfavourably because of her pregnancy or related illness, or because she is on maternity leave or seeking to take maternity leave.The College must also not discriminate against an employee because of his/her association with a woman who is pregnant or who has recently given birth (see Section 6).

5.7Race: The College must not discriminate against any employee because of his/her colour, nationality or ethnic or national origins.

5.8Religion or belief: The College must not discriminate against any employee because of his/her religion or philosophical belief, or because of his/her lack of religion or belief.Ultimately it will be up to the Courts and Tribunals to decide which beliefs are covered by the legislation; however, the EHRC provides guidance on the definition of a “philosophical belief” as being:

  • genuinely held;
  • a belief and not an opinion or viewpoint based on the present state of information available;
  • it must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • it must attain a certain level of cogency, seriousness, cohesion and importance;
  • it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

Throughout this guidance, references to religion or belief or lack of a religion or belief will be covered by the term “belief systems”.

5.9Sex: The College must not discriminate against any employee because of his/her sex.

5.10Sexual orientation: Employees must not be discriminated against because of their sexual orientation, whether that be towards:

  • people of the same sex (i.e. the employee is a gay man or a lesbian);
  • people of the opposite sex (i.e. the employee is heterosexual);
  • people of both sexes (i.e. the employee is bisexual).

6.Types of discrimination

6.1Discrimination occurs when a person (or group) is treated less favourably than others. It can take different forms and this section describes the different types of discrimination, or ‘prohibited conduct’, under the act.

6.2Direct discrimination: is less favourable treatment because of a protected characteristic.Direct discrimination occurs if a person has the characteristic, is perceived to have the characteristic (see 6.6) or because they associate with someone who has a protected characteristic (see 6.5).Direct discrimination in relation to age can be objectively justified.

6.3Indirect discrimination: may occur when an apparently neutral provision, criterion or practice is applied to everyone, but which puts employees who share a protected characteristic at a particular disadvantage; and this cannot be justified as a proportionate means of achieving a legitimate aim.

6.4Discrimination arising from disability: is where a disabled employee is treated unfavourably not because of his/her disability itself but because of something arising from, or in consequence of it, and that treatment cannot be justified as a proportionate means of achieving a legitimate aim.

6.5Discrimination by association:is direct discrimination because of an employee’s association with a person who has a protected characteristic (not including marital or civil partnership status[2]). This applies regardless of whether the employee has the protected characteristic personally.

6.6Discrimination by perception: is direct discrimination against an employee because he/she is mistakenly believed to have a protected characteristic (not including marital or civil partnership status.

6.7Harassment: is unwanted conduct relating to a protected characteristic, which has the effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee.

6.8Victimisation: occurs when an employee is treated less favourably because he/she has, in good faith, done a protected act (e.g. made or supported a complaint, or raised a grievance) regarding a protected characteristic.

6.9Reasonable adjustments:are those adjustments made to remove barriers preventing people from integrating into the workplace. The duty to provide reasonable adjustments is a positive duty to remove any barriers or provide extra support to disabled employees in the workplace and for applicants during the recruitment process. Failure to make that adjustment may amount to discrimination. (See Appendix 1 for further guidance).

6.10Objective Justification: is the process by which an employer may be able to objectively justify discrimination as being a proportionate means of achieving a legitimate aim. If challenged it is for the employer to justify the provision, criterion or practice so evidence should be produced to support any assertion that the discrimination is justified[3]. Considerations should be made for justification on the merits of each individual case.

The question of whether the provision, criterion or practice is a proportionate means of achieving a legitimate aim should be approached in two stages:

  • Is the aim of the provision, criterion or practice legal and non-discriminatory, and one that represents a real, objective consideration?
  • If the aim is legitimate, is the means of achieving it proportionate – that is appropriate and necessary in all circumstances?

7.Equality Monitoring and Analysis

7.1In accordance with the equality duty ‘specific duties ‘the College will gather, analyse and publish information on an annual basis about how its policies, procedures and practices are affecting employees with different protected characteristics.

7.2This process is used to inform the setting of objectives for the equality duty (as described in Section 4) and the measurement of progress towards achieving the duty.Analysing the impact of the College’s policies and practices, and the extent to which they promote equality of opportunity between employees with different protected characteristics, will help identify the key equality considerations and priorities for the College. To this end, the College will gather and analyse appropriate information and use it to assess the impact of relevant College activities on employees who share different protected characteristics. The purpose of this assessment is both to ensure that no employee is disadvantaged because of a protected characteristic, and to identify where equality of opportunity can be promoted actively. The process will also help identify any risk of discrimination occurring in the exercise of the College’s functions, and enable steps to be taken to remedy this.

7.3The College should develop an equality profile of their employees at different grades/levels throughout the organisation, to aid understanding of the workforce and the key equality issues.The College should also consider what additional information would be helpful to meet the duty, such as:

  • Job application and selection success rates by protected characteristic
  • Type of contract (permanent, fixed-term, part-time)
  • Training and development
  • Promotion
  • Pay levels and any equal pay audits
  • Grievances, including complaints of harassment or discrimination
  • Disciplinary and capability proceedings
  • Leavers and redundancies
  • Information from exit interviews
  • Results of employee satisfaction surveys
  • Rates of return from maternity leave
  • Rates of requests for flexible working
  • Language and images used in internal and external communications
  • Data on adjustment solutions, such as for a disability

7.4If staff monitoring shows that there is an under-representation of employees with a protected characteristic at any level within the College, they should take action by reviewing their recruitment, promotion and training practices to ensure they are free of bias andcontain no barriers.